Jury Returns Verdict in “50 Shades of Grey” Case

CC image Wikipedia.orgA federal jury has ruled in favor of an ex-husband who was accused of forcing his wife into a sadomasochistic relationship in which he allegedly sexually abused her.

In a story we documented earlier this month, a jury of four men and four women ruled that Kimberly O’Brien, 52, should not receive any monetary damages from the suit that claimed she was abused by her then-husband throughout their marriage.

After listening to testimony from both sides over a nine-day trial, the jury deliberated for four and a half hours before returning their verdict. The ruling closes the book on a lawsuit that has been pending for seven years.

“Here it would seem like the jury believed the husband’s claims that O’Brien was a willing participant in the activities and her suit against him was simply about the money,” said Family Law Attorney Sean Sullivan.

Looking Back at the Case

In her suit, O’Brien alleged that her then-husband Kenneth Anderson tied her up and sexually abused her while the pair was on their honeymoon. The claim also stated that Anderson forced her to walk around the home naked, sleep on the floor next to the bed, and address him as “master”.

Anderson said the sexually submissive relationship was O’Brien’s idea. He also stated that the couple had a safe word in case things went too far, but O’Brien never used the word.

Anderson also testified that O’Brien went behind his back and had an abortion. He said she later told him she’d lost the baby in a miscarriage, but O’Brien told the court Anderson forced her to have an abortion.

The case took seven years to reach a conclusion because Anderson was a successful business owner that had millions of dollars in assets. Sullivan said the case could have been settled much quicker if the couple had opted to draft a prenuptial agreement.

“This case would have been simplified if the parties had decided to create a thorough pre-martial agreement before they wed,” said Sullivan. “The case would not have been litigated for seven years, and the parties could have avoided wasting time and money on a drawn out legal process.”

Sides Differ on Ruling

Ultimately the case came down to a “he said, she-said” type of argument. Perhaps the most damaging evidence against O’Brien’s version of events were photographs of her on the honeymoon. She was seen smiling in the pictures, and there was little evidence of being forcibly constrained earlier on the trip. Dean Dickie, who represented O’Brien at trial, said they were disheartened with the ruling.

“We’re disappointed with the verdict,” said Dickie. “This has been a very difficult ordeal for her.”

Anderson’s attorney Charles Cole said he was confident the jury was able to accurately separate fact from fiction.

“This is not a vulnerable woman under anyone’s control, locked up in some dungeon,” said Cole. “This story just doesn’t hold water.”

Related source: Chicago Tribune

Lengthy Legal Battle Ahead for “Fifty Shades of Grey” Divorce Case

CC image Wikipedia.orgA marriage that began in 2005 has ended with a lawsuit alleging sexual assault, battery, false imprisonment and intentional infliction of emotional distress, according to the federal case that was heard this week.

Kimberley O’Brien took the stand Tuesday to testify against her husband Kevin Anderson, from whom she filed for divorce from in 2006.  Astonishingly, the federal civil case had been litigated for seven years before O’Brien had the ability to take the stand in her defense.

In her suit, O’Brien claims that she and Anderson lived a luxurious lifestyle that included trips to Switzerland and Italy, but their marriage took a turn shortly after they exchanged vows.

According to O’Brien, she was sexually assaulted on her honeymoon in California.  O’Brien claims Anderson struck her in the back of the head, tied her up and sexually violated her.  She also states that Anderson left her bound overnight.

“You will never tell anyone about this and if you are a good slave this will never happen again,” Anderson allegedly told O’Brien the next morning.

O’Brien also claims that Anderson made her walk around their house naked and told her to refer to him as “master”.

“It was the biggest mistake of my life ever being with this man,” O’Brien said in court.

Husband Claims Mutual Relationship

Anderson said the relationship was nothing more than two consenting adults living out their fantasies. According to him, it was O’Brien who brought the sadomasochist fantasies into the bedroom, and she wanted to be tied up on their honeymoon.

She said, “This is our last night here – let’s go big,” according to Anderson’s attorney Chris Cole.  Anderson’s attorney also states that the couple decided on a safe word, but O’Brien never used it during their sexual romp.

Millions of Dollars at Stake

The case has received national attention because of the amount of money at stake.  O’Brien is seeking $10 million in damages for her pain and suffering.  Anderson’s camp believes O’Brien is simply trying to seek a quick payday.

“This is a case largely driven by revenge and greed,” said Cole.

One of the biggest reasons this case has taken so long is because the couple seemed more interested in a “master-slave” contract than a prenuptial agreement.  Family Law Attorney Sean Sullivan said finances and property holdings should always be examined before a couple gets married, especially when a vast amount is involved.

What strikes me most is that this case has been litigated for 7 years.  The main reason for this is because there is a marital estate that reaches into the millions. With an estate that large, both sides would have been better served entering into a pre-marital agreement. They could have avoided such prolonged litigation and saved thousands in legal fees by agreeing before this marriage even occurred that there would be an equitable division of the marital estate in the event the marriage broke down.

If two parties are contemplating marriage and the marital estate in question has significant financial resources, then the parties are much better off entering into a pre-marital agreement. Some people feel these are not romantic and it means the marriage is doomed from the start. I look at them in much more of a practical light. I hope the parties live happily ever after and any pre-marital agreement drafted never has to be enacted. But if things do not work out, then a carefully drafted pre-marital agreement can save both parties time and money lost arguing in court.

This will no doubt be a difficult case for jurors to decide on. They are tasked with deciding if these acts that occurred were the result of abuse and coercion or choices made by consenting adults. What is interesting is that this case was brought as a civil case and not a criminal case. If these acts were forced on her as the wife claims, then the husband’s conduct amounts to criminal action. However, if this was indeed shared sexual interests and the parties entered into the acts voluntarily, then the root of this case is decidedly something else entirely.  

Related source:  Chicago Tribune

Scammers Targeting Victims of Oklahoma Tornados

CC image Oklahoma recovers after devastating EF-5 tornado by DVIDSHUB on FlickrWhenever a national tragedy occurs, hundreds of thousands of Americans donate their time and money to make sure their neighbors can get through the darkest of times.  The relief effort in Oklahoma in the wake of the deadly tornados represent the shining light that is the American way of life, but with such support comes the potential for low-lives and petty thieves to try to make a quick buck off the generosity of others.

Similar actions happened just months ago in the aftermath of the shootings in Newtown, Connecticut.  Many people were anxious to donate to the victims of the tragedy, and they went online to try to find a donation center that was collecting money for the victims of the families.  What some generous folks didn’t know was that scammers had set up fake profiles or PayPal accounts that promised to donate the received funds to a local family, when in fact the scammer intended to hold onto the donations for their own self interests.

These scammers are the lowest of the low.  They represent the Anti-Robin Hood, stealing from the less fortunate to keep for themselves. They are the child molesters of digital crime, feeding off the goodwill of innocent individuals.

Reports out of Oklahoma have found that some individuals have been calling households in Oklahoma, asking them to donate to the relief efforts under the guise that they are acting on behalf of the Salvation Army or the Red Cross.  When a person gives out their information, they are basically depositing money directly into the scammer’s bank account.  The Red Cross and Salvation Army have both issued statements saying they will never call you asking for donations, as they have other fundraising techniques.

In another report, some individuals have said that area hotels and stores have attempted to profit off the displacement of others.  Investigators found that one convenience store was charging $40 for a case of water, while some hotels have jacked up room rates because the victims have nowhere else to stay.  These price increases are in direct violation of what is known as The Emergency Price Stabilization Act, which prohibits price increases of more than 10% on goods and services in the wake of a disaster.

While residents and law enforcement officials have enough to deal with as they sort out this tragedy, we can only hope that these scammers are swiftly brought to justice.  If you want to donate to the relief efforts, visit the official site for either the Salvation Army, or the American Red Cross.

Sean Sullivan comments

Though Illinois has not faced a tragedy so devastating as these tornados in Oklahoma, many homes and business have been damaged recently due to heavy rains and flooding. At times of stress and crisis like these, homeowners and consumers are understandably distraught and do not often make the best choices.  Sadly it occurs all too often with tragedies such as this that disreputable individuals or companies will prey on this distraction and stress and use it to their advantage.

I have seen this phenomenon here in Illinois in my own practice. I have successfully defended Illinois homeowners against “storm-chaser” companies who offer their help to victims of storm damage. Companies such as this often offer their “services” to help negotiate on your behalf with insurance companies and then claim that you are obligated to award them the right to make the necessary repairs to your house. Another common danger with companies such as this is they often take the entire insurance check up front and then never do the work.  At times like these, homeowners should:

  • Be wary of anyone or any company who just approaches you out of the blue offering their services;
  • Always ask for references;
  • Be suspicious of anyone who seems to use bullying or hard sale tactics;
  • Check with your neighbors for referrals to reputable contractors who they were satisfied with;
  • Feel free to check anyone out with the better business bureau;
  • Refer to the Illinois Attorney General’s website under their consumer fraud division for more knowledge of your rights as a consumer under the laws of Illinois.

Spousal Support in Illinois

CC image from 401(K) 2013 on FlickrIt is very rare in divorce proceedings that both parties have the capacity for equal finances after the divorce. One party is almost always going to have the ability to earn more money than the other party. The courts address this through a distribution of assets of the marital property or by awarding spousal support. Most people traditionally refer to this as “alimony”. Alimony is the age old traditional term for spousal support that really is not in use anymore. Nowadays, Illinois courts use the term “maintenance”.

What is Spousal Maintenance?

Spousal maintenance awards can be either temporary or permanent. Temporary awards are ordered by the court to preserve the status quo of the parties’ finances while the divorce is proceeding through the courts. Permanent awards are typically what the parties agree to in the marital settlement agreement at the conclusion of the divorce proceedings, which will govern the future finances of each party once the divorce is final.

Maintenance can be waived, but only upon a showing that the party waiving it is doing so freely and voluntarily. However it is most important to note that once maintenance is waived, it is forever waived. The party that waives it cannot not go back and change their mind and ask the court to award it at a later date.

Maintenance is calculated by looking at several different factors viewed by the court as a whole. No one factor is the sole determining factor that triggers the court to award maintenance. Typically the court considers the earning power of each party, the lifestyle during the marriage, the education level of each party, and if either party forsaken educational opportunities to support the family while the spouse has sought more schooling.

If you are contemplating divorce, you should consult an attorney to discuss your options and how to best protect yourself and your rights going forward.

Moving out of State with a Child – 5 FAQs

CC image Wikipedia.orgThis post was written by Sean Sullivan, head of the Family Law department at Appelman & Associates.  Sean is committed to providing his clients with the best representation in a variety of civil matters. He has also served as volunteer law clerk with the Cook County Public Defender’s prestigious Homicide Task Force.  For more information about Sean, check out his bio or give him a call at (630) 717-7801.

In my daily practice, one recurrent theme I deal with is parents who have moved out of state with their child, or are contemplating moving out of state with their child, and suddenly find themselves in a legal battle with their ex who opposes the move. It becomes particularly frustrating for clients when it seems the party objecting to the move is doing so “to get back at me and not because they really care about our child”. That very well may be, but my answer is always the same; in order to move, you have to get permission from the Court.

If the child was born in Illinois, or has resided in Illinois for the last six months, then Illinois has jurisdiction over the child. If Illinois has legal jurisdiction over the child, then the child cannot be removed from the state (on a permanent basis) without the permission of the Court. Your ex may be taking you to Court just to fight you and not out of concern over your child, but it is their legal right to do so.

What do I need to do if I want to move out of state and take my child with me?

You need to contact an attorney and seek their help in filing a motion with the Court asking for permission to remove the child from the state.

What if I am just taking the child out of state temporarily, do I need the permission of the Court?

Maybe.  It depends upon the language that was agreed upon in the joint parenting agreement or the marital settlement agreement. Both agreements typically have some language that allows for removal of the children for short periods of time, but it is best to consult an attorney and have them review either your JPA or MSA to determine this for sure.

I already moved out of state, and did not get the Court’s permission. Is anything going to happen to me?

It is very likely you could be held in contempt by the Court for taking the child out of state without permission. You should attempt to return the child to the state as soon as possible and contact an attorney.

What factors does the Court consider in letting me move my child out of state?

There are many factors the Court takes into consideration and each can be given different weight by the Court. Overall, the controlling factor in the Court’s determination is what is in the best interest of the child.

I am getting remarried, how will the Court look at that?

The Court will consider that as one of the factors it makes in its determination of what is in the best interest of your child. Getting remarried or not getting remarried is not necessarily a predictor of what the Court will decide one way or the other.

Am I a candidate for an uncontested divorce?

Commons.Wikipedia.orgAlmost by its very essence, obtaining a divorce is a contested issue, thus very few people qualify for Simplified Divorce Proceedings.  I often get calls from people who want a “quick divorce” or they “had a friend who got a divorce just by filling out some paperwork”. In effect what these people are really asking is: am I a candidate for an uncontested divorce?  Yes; in Illinois if you qualify for a simplified dissolution, it can be much quicker than obtaining a traditional divorce. And yes, it is relatively easy and requires mostly just filling out some forms and filing them with the court.   That being said, most of the people who contact me are not eligible for a simplified dissolution.

If any of the following apply to you or your spouse, then you are NOT eligible for a simplified dissolution proceeding and should consult a lawyer to determine the best course of action in your impending divorce:

  • You and your spouse have been married longer than 8 years;
  • During the course of the marriage either you or your spouse: adopted a child;  gave birth to any child; or you or your spouse is currently pregnant;
  • The parties’ income is greater than $35,000.

This list in not all inclusive but just highlights the most common factors that make most couples ineligible for simplified dissolution proceedings. If you answered no to any of these, a simplified dissolution may still not be the best solution for you. It is often better to contact an experienced family law practitioner to discuss your questions or concerns and let them determine the best way to proceed.

Sean Sullivan is a Civil and Family Law Associate at Appelman and Associates.  If you would like to talk to Sean about a Family Law matter, he can be reached at (630) 717-7801.

Woman Dies after Health Care Staffer Refuses to Perform CPR

Police in California are investigating a refusal by a staff member at an independent living facility to perform CPR on an 87-year-old woman who collapsed on the floor and later died.

Lorraine Bayless was discovered by a resident services director after she collapsed at Glenwood Gardens independent care facility.  The staff member called 911, but refused to render first aid as she believed she was following company protocol.  Below is a partial transcript of the call.

Dispatcher: OK, is there anyone there who is willing to help this patient?

Caller: I am, but…

Dispatcher: OK great, then I’ll walk you through it all. EMS takes the liability for this, Colleen. I’m happy to … OK? This is EMS protocol. OK?

Caller: (To someone off the phone) I don’t know where he is. She’s yelling at me to have one of our other residents perform CPR. And I’m not gonna do that, and make that call.

Dispatcher: Colleen, is there anyone that works there that’s willing to do it?

Caller: We can’t do that.

Dispatcher: Are we just gonna let this lady die?

Caller: Well that’s why we’re calling 911.

Dispatcher: We can’t wait. She can’t wait right now. She is stopping breathing. She can’t wait for them to get there.

Caller: She’s taken three breaths.

Dispatcher: It’s not enough. We need to get CPR started.

Caller: (Chatter in background) He’s saying we don’t. You can talk to my boss, and I don’t know what to say.

Dispatcher: OK. (To someone off phone.) They’re refusing CPR, they’re gonna let her die. By the facility, yeah.

Caller: When will the fire department be here? When will the ambulance …

Dispatcher: They’re coming. They’ve been on the way all this time but we can’t wait. This lady’s gonna die.

Caller: Yeah.

Dispatcher: OK, well then if you get anybody, any stranger that happens to walk by that’s willing to help. I understand if your boss is telling you can’t do it. But if there’s any human being. … Is there anyone that’s willing to help this lady and not let her die?

Caller: Um, not at this time

Glenwood Gardens offered an immediate statement saying the staffer had adequately followed protocol.

“In the event of a health emergency at this independent living community, our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives. That is the protocol we followed,” said Jeffrey Toomer, executive director at Glenwood Gardens.

Andrea Turner, a spokeswoman for Glenwood Gardens, echoed Toomer’s sentiments, saying there is a clear distinction between independent living facilities and assisted care centers.

“Independent Living communities do not provide medical services, as they are not licensed to do so. In an emergency, staff will call 911 and then wait with the person in need of assistance. Glenwood Gardens is an independent living facility which, by law, is not licensed to provide medical care to any of its residents,” said Turner.

Public Backlash

There has been an overwhelming amount of public backlash chastising the facility for not rendering CPR.  Arthur Caplan, who acts as the head of the Division of Bioethics at New York University Langone Medical Center, said the facility’s failure to render aid cost this woman her life.

“It’s inexcusable,” said Caplan. “You call 911, you trigger a process to do a resuscitation.”

Caplan added that the staff member had nothing to lose by rendering CPR, as all states have laws that protect “good Samaritans”.

“There’s never been a successful lawsuit against someone who tried to help using CPR,” he said. “Every state, if you make a good, safe attempt to help, will indemnify lawsuits.”

Caplan went on to say that some states are even levying punishments for those who fail to render aid.  He cited a Vermont law which states that a person can be fined $100 for not helping a person in distress.

Family Absolves Center of Fault

Bayless’ family issued a statement Tuesday saying that they absolve the care facility of any wrongful activity in Lorraine’s death.  The family said although Lorraine did not have a legal “Do Not Resuscitate” order, she wanted to die naturally.

“It was our beloved mother and grandmother’s wish to die naturally and without any kind of life prolonging intervention,” the family said in a statement.

Less than two hours later, the medical facility issued a statement saying that the employee’s failure to render aid stemmed from a misunderstanding of company policy.

Sean Sullivan comments

Legally, I would say that this nursing home breached its duty of care to the elderly patient.  As a patient, this nursing home had a legal responsibility to make every effort to save this woman. By not doing so, they clearly violated their legal standard of care to her. It sounds as if this nursing home has enacted a policy that they cannot legally enforce.  Legally, this staff member must render aid to help this patient. It sounds as if they have enacted a policy that is contrary to this idea and legally it will not give them a defense.  As a general rule, the courts will not uphold policies that are against the best interests of the public’s safety.

If this patient had a Do Not Resuscitate (DNR) Order this would be a different case. In the case of a DNR, a patient has legally expressed their wishes to not receive extraordinary life saving measures.  In fact, in the case of a DNR, the nursing home legally cannot do anything.  But absent that fact being brought to light, this is a case of extreme negligence and an outrageous breach of care to a patient on the part of this nursing home.

Although it seems that there had been a family discussion about Lorraine’s final wishes, it’s always a good idea to come to a written agreement with a primary care facility in case an event arises.  It looks as if the family will not be seeking legal damages, and I hope that other care facilities use this incident to evaluate and discuss their emergency procedures.

Related sources:  ABC News, Washington Times

NIU Frat Members Named in Wrongful Death Suit

The family of a Northern Illinois University freshman who died after drinking excessive amounts of alcohol is suing the fraternity who hosted the pledge party for wrongful death.

In the lawsuit, the family of David Bogenberger alleges that members of the Pi Kappa Alpha house encouraged their son to drink large amounts of alcohol and failed to provide assistance when Bogenberger became unconscious.

An autopsy revealed that Bogenberger, 19, had a blood alcohol level of .4, nearly five times the legal driving limit for adults.  In the suit, the Bogenberger’s stated that the fraternity did not follow national hazing policies, and their actions caused their son to consume “excessive and dangerous amounts of alcohol”.

Peter Coladarci, the family’s attorney, argued that the nationally recognized fraternity did not adequately ensure that their chapters knew about the dangers of overconsumption.

“The national organization has a responsibility to provide meaningful training, supervision and oversight to its local chapters, so that fraternity members understand that alcohol-related hazing is … potentially deadly,” said Coladarci.

Underage consumption is common on college campuses, but fatalities are not.  One study suggests that roughly 12 underage students die each year due overconsumption.

All 22 members of the Pi Kappa Alpha fraternity were named in the lawsuit.  Each individual faces criminal charges, while five leaders have been charged with felony hazing.

Attorney Sean Sullivan comments

Regrettably, hazing incidents seem to be ever increasing in the news these days.

Whether it is extreme binge drinking at a college fraternity party, or physical assaults among high-school athletic teams, young people are being hurt. Illinois in particular has seen several incidents at the high school level in the last year or so.

The best way to protect these young people and end hazing is to stand up to these bullies and draw attention to the problem. Filing lawsuits will help bring attention to these incidents and put these bullies on notice that these particularly callous or negligent acts will not be tolerated anymore.

Related source:  Chicago Tribune

4 Reasons to Hire a Divorce Lawyer

Chicago Divorce LawyerDivorce can be an expensive and stressful and process, and it can become even more complicated if you try to mediate your divorce without help from an experienced legal team.

The main objective for a divorce attorney is to ensure you receive what you are entitled to in a divorce.  The majority of people going through a divorce are doing it for the first time, so it’s beneficial to have legal expertise on your side that can explain the process and help save you money.  Although it may seem cheaper to try to settle your divorce without paying for legal services, it can actually be more costly if things are done incorrectly.  Illinois Divorce Attorney Sean Sullivan provides commentary on the benefits of hiring a divorce attorney.

  • Divorce attorneys have a wealth of knowledge – Although no two divorces are exactly the same, divorce attorneys have been through the process hundreds of times and know how to put your needs first.  There are a variety of motions that need to be filed with the court, and you won’t need to worry about missing a deadline or failing to file a motion if you hire a divorce attorney to take care of the paperwork for you.

“Some people think that they cannot afford to hire an attorney to handle their divorce, but the question may very well be, ‘can you afford not to?’”

  • In cases of custody or abuse – Divorces become even more complicated when issues of custody or alleged abuse arise.  If you are determined to earn full or partial custody of your children, it’s best to hire an attorney to assist in the process.  Trying to tackle this matter by on your own can lead to added emotional stress and convey the wrong message during the custody process.  If you are accusing your spouse of verbal or physical abuse, an attorney can help protect your rights and safety.

“Emotional issues can be very painful during a divorce if you don’t have someone to lean on for support.  Always hire your own divorce lawyer and let them handle it from the beginning.”

  • It can save you money – There is a common perception that going through a divorce without a lawyer will save you money in legal fees and court costs, but that is not always the case.  For example, if you fill out forms incorrectly or neglect to prepare for court, it can be more expensive to fix your mistakes.  Also, by not hiring an attorney you may be forced to miss work for court sessions.  Although you aren’t paying for an attorney, you miss out on earned income or may be forced to burn valuable personal days.

“Oftentimes it is more expensive to fix things that are done wrong than it is to pay for them to be done correctly in the first place.”

  • They’ll make sure you don’t get swindled – One of the biggest reasons why you should hire a divorce attorney is because your soon-to-be-ex has hired one.  As mentioned above, the main goal of a divorce attorney is to get you everything you’re entitled to.  If one side is backed by legal expertise while the other is armed with only their “best guesses”, it doesn’t take a rocket scientist to see who is going to come out on top in the courtroom.

If you simply rely on the advice or go with whatever your soon-to-be-ex’s lawyer suggests, you could end up paying more in legal fees in the long run.”

Top 5 Illinois Family Law Terms

  1. “GAL” – Guardian Ad Litem. This term refers to a court appointed attorney. This is a third attorney appointed by the Judge who represents the interests of the children in the divorce. This attorney is separate and independent of any attorney either of the parents have on retainer.
  2. “MSA”- Marital Settlement Agreement. This is a legal document that sets out the agreed upon terms of a divorce. It is a legally binding contract that governs all the issues that affect the parties after the divorce such as marital property, child support, custody, etc.
  3. “JPA”- Joint Parenting Agreement. This is the written agreement that deals with the interests of the children. It is often included as a separate agreement that is adopted and incorporated as part of the MSA. It governs everything related to the children: who gains custody, when is visitation, how much is child support, who gets the kids for what holidays, etc.
  4. “Maintenance.” The legally correct term for “alimony” in Illinois. This is the amount of money that one party pays to the other party to support them after the divorce. In Illinois the party that typically earns the higher income is the party that pays “maintenance” to the other party. Regardless of whether that party is the husband or wife. There is no hard and fast rule on what amount of maintenance the courts may award a party. Rather the courts look at the levels of income, the Parties’ standard of living, all of the marital assets, and then determine it on a case by case basis.
  5. “Residential Custody.” This term relates to the parent with whom the children reside. The other parent still has “custody” over the children in that they still have a say in how to raise the children, and visitation rights. But the parent with residential custody is the parent with whom the child lives on a general day-today basis.